GOVT. ADVOCATE AND PUBLIC PROSECUTOR Vs. DILIP KUMAR
LAWS(GAU)-1951-7-4
HIGH COURT OF GAUHATI
Decided on July 09,1951

Govt. Advocate And Public Prosecutor Appellant
VERSUS
DILIP KUMAR Respondents

JUDGEMENT

THADANI,.J. - (1.) THIS is an appeal preferred by the State of Assam under Section 417, Criminal P. C., against an order of acquittal passed by the learned First Class Magistrate of Gauhati in G. R. Case No. 2085 of 1946 in which he acquitted one Dilip Kumar Chatterjee of the offence of criminal breach of trust under Section 408, I. P. C.
(2.) AS we propose to order a re -trial, it is not necessary to set out the facts of the case. We find that the Trying Magistrate has displayed a complete ignorance of the meaning of Section 342, Criminal P. C. The only question put by the learned Trying Magistrate to the accused was: 'What is your reply to the charge brought against you to the effect that you misappropriated money of Railway Company?' The answer was: 'I am innocent.' If the learned Magistrate had taken care to refer to Sections 405 and 408, I. P. C., he would have realised that the points for determination in a case in which an accused person is sent up for trial under Section 408, I. P. C. are - -(1) whether the accused was a clerk or servant; (2) whether in such capacity he was entrusted with property or had dominion over the property, (3) whether the accused dishonestly misappropriated or converted to his own use that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust or wilfully suffered any other person to do so. The lack of appreciation of the full implications of the provisions of Section 342, Cr. P. C. has resulted in a wholly unsatisfactory judgment - -a judgment which cannot be properly regarded as a judgment, whether of acquittal or conviction.
(3.) RECENTLY we had had occasion in - -'Nirmal Prasad v. State', AIR 1952 Assam 2 (A) to remand the case for retrial - -a case in which the learned Magistrate had also failed to appreciate the meaning of Section 342, Criminal P. C. Magistrates in this State will do well to conform strictly to the provisions of Section 342, Criminal P. C., in order to save time and expense. Generally speaking, they should draw the attention of an accused person, when he is being examined under Section 342, Cr. P. C., to the circumstances appearing against him in the evidence of each witness and ask him for an explanation, and not merely ask him 'what is your defence?';


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